No frills, philosophical introductions, or lengthy explanations
for today’s case. It is a piece of
shopcraft, the law’s version of boilermaking.
So in that spirit let’s get to the heart of things and see how it is
done.
Defendant and his girlfriend were charged with multiple
counts of aggravated sexual assault. The
opinion never details the facts from which these charges stem, but there are
enough details and references to glean that these were horrible acts and likely
involved the girlfriend’s daughter. The
trial court, quoted in paragraph 5 goes the Lovecraft route and repeats the
word “shocking” to summarize the cumulative horror of the evidence in the case.
The present appeal stems from the State’s third attempt to
prosecute Defendant and his girlfriend. The
first trial ended with a hung jury, and the second trial, which ended in a
conviction, had to be set aside due to improper admission of certain
evidence.
The third time, though, was the charm for the State, which
secured a conviction against Defendant and brings us to the current appeal.
Defendant’s arguments on appeal concerned the fact that his
trial was consolidated against his will with his girlfriend, who mid-trial agreed
to a plea guilty to a lesser charge, which led to her dropping out.
If this sounds like a recipe for reversal, it is not. These issues raise more practical than legal
concerns. That is because criminals who act together or
conspire to commit crimes can be tried together. Likewise, if one of the criminal defendants
takes a deal in the middle of the trial, it is not the end of the trial or
cause to start over.
In both cases, the real issue is whether the trial court
handled the situation appropriately.
This means dealing with these circumstances in a manner that avoids
prejudicing the jury and that creates or maintains a fair trial.
So Defendant’s argument that his trial was improperly joined
with his girlfriend’s trial comes under an abuse of discretion review. The SCOV starts by noting that trial courts
have broad discretion to order joint trials where the alleged crimes are closely
connected or part of a common scheme and that a joint trial will not prejudice
a party.
Here the trial court found that both elements were present
as the alleged sexual assaults were committed by the defendants at the same
time or within a relatively short period of time. Such coordination was enough evidence to show
that there was likely a common plan or scheme and that the crimes were closely
connected. The trial court also found
that the “shocking” nature of the crime, the facts were fairly straightforward,
and the evidence easy to separate between the Defendants. So it ruled no prejudice ran to either defendant
as a result of the joinder.
The SCOV does not delve into the trial court’s analysis but
looks to the State’s argument that Defendant failed to properly preserve the
objection. The SCOV notes that before the
first trial, Defendant had objected to the joinder. By the second, he withdrew his objection, and
stated no opposition to the joint trial.
At the beginning of the third, counsel for girlfriend
renewed her continued and on-going objection to the joinder, which she had
entered at the two previous trials. Defendant’s
counsel added “same here.” The SCOV
notes that such an informal objection after a convoluted history is insufficient. “Same here” or “me too, bub” doesn’t cut it. Defendant needed to lodge his objections
clearly and possibly through a written motion to preserve the issue. As it stands, the objections are insufficient,
and the SCOV refuses to consider the joinder issue or revisit the trial court’s
ruling on the matter.
No dice for Defendant, and he does not fair better on the
issue of the girlfriend bargaining out of the case. For the SCOV this issue is one of prejudice
and jury instructions. When girlfriend
took her plea deal, the trial court told the jury simply that the trials had
been split, that this may have happened for any number of reasons, and that the
jury should attach no weight to it.
Defendant argued that his conviction was proof that the jury did not
listen to the instruction.
The SCOV disagrees.
It rules that the trial court’s instruction was proper and correct. It disregards Defendant’s allegations that
the verdict shows prejudice. There was
plenty of evidence to convict, and Defendant presents no evidence establishing
that the jury reached its decision improperly.
The SCOV goes on to address Defendant’s further argument
that evidence admitted during the girlfriend’s time as a co-defendant prejudiced
him. Apparently, the girlfriend’s abuse
of her daughter started long before the time Defendant became involved, and
Defendant argued that this additional cumulative evidence effectively
prejudiced the jury against him. This is
simply not enough for the SCOV. It notes
that the facts attributable to each defendant remained easily distinguishable. So while there was testimony of a wide number
of sexual assaults, there was no legitimate question about which were and were
not attributable to Defendant.
This is important to the SCOV. Yes, the amount evidence was broader than if Defendant
had been tried alone, but there was no reasonable question which acts the State
sought to link to Defendant, and there was no gap between the acts alleged and
the findings of the jury. Given that Defendant
cannot cite to specific prejudice or to improper considerations by the jury,
the claim fails as a matter of law.
The last issue raised by Defendant is the admission of the
victim’s diary, which allegedly contained a secret code noting the number of assaults
that she suffered. The trial court
initially ruled that the diary was inadmissible, but that the State could ask
her if she kept a diary and kept notes corresponding to the various sexual
abuse incidents.
On cross-examination, the Defendant introduced the diary to
show that there were no secret markings and no descriptions of abuse. The diary was admitted for impeachment
purposes. Because the Defendant moved
for the admission of the diary, the SCOV rules that its overall objections to
the admission of the diary must fail.
In other words, Defendant’s real issue is with the trial
court’s allowance of any mention of the diary, but the SCOV rules that trial
court’s initial ruling was correct. The
State could ask and victim could testify that she kept a diary so long as its
contents were not discussed. Defendant
then chose to use the diary to dispute some of Defendant’s characterizations,
but it came with the double edged sword that Defendant effectively put the
diary into evidence and thereby completely thwarted his larger argument.
With that Defendant’s last argument is dismissed, and so is
his appeal. Defendant’s objective of
obtaining a retrial, where he would appear alone, fails.
Shocking, it isn’t?
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